Analysis: A rare rebuff for the SG

Posted Tue, October 11th, 2011 9:01 pm by Lyle Denniston

Analysis

The U.S. Solicitor General’s office has a special relationship with the Supreme Court, giving it more clout than any other law office dealing with the Justices. The “SG” is a kind of outside adviser to the Court, and the Justices frequently seek its input in cases in which it is not even a party. And the Court is especially generous in giving the SG time to argue in cases in which it says it has an interest. Usually, the SG does not push that advantage audaciously. It may have done so, however, in a case the Court will hear on November 1: Rehberg v. Paulk (docket 10-788).

The SG’s role in that case came to light on Tuesday, when the Court refused — in a truly rare order — to allow the government’s top legal office to join in the Rehberg argument.

The SG’s office filed a friend-of-Court brief on June 16, leaving no doubt where its sentiments lay. Its interest in this case, involving claims of legal immunity for state officials, is that the case may have a spillover effect and expose federal government officials to civil lawsuits “for violations of constitutional rights,” the brief said. It made a strong plea for absolute immunity in the circumstances of this case. A month later, apparently seeking to straddle the two sides in the case as an independent counselor to the Court, the office asked the Justices to give it five minutes of each side’s time at oral argument.

The problem with that position (as lawyers for the individual who appealed, Georgia accountant Charles A. Rehberg, advised the Court), was that the SG was not in the middle of the case at all, but was squarely on the side of the local crime investigator, James P. Paulk, whom Rehberg had sued. The case went to the Supreme Court because the federal appeals courts are in conflict over whether an individual who starts a criminal case against someone else (a “complaining witness”) is entitled to absolute immunity when that witness has appeared before a grand jury probing the allegations. Because of that conflict, the Justices granted review on March 21, and the case is turning into a major test of claims that government officials retaliated against a whistleblower.

Rehberg had gotten into serious legal trouble after acting as something of a whistleblower, seeking to expose what he deemed unethical billing practices at a hospital in Albany, Ga. Unfortunately for Rehberg, the hospital had close ties to the local prosecutor, who obtained three criminal indictments against Rehberg — each of which was later dismissed, so he never was put on trial. Paulk, as chief investigator for the local prosecutors, was the lone witness before the grand jury that indicted Rehberg the first time, and appeared again when it issued the second and third indictments. (The three indictments were later dismissed, so Rehberg never was put on trial.)

Later, when Rehberg sued Paulk and two prosecutors, he would claim that Paulk had testified falsely against Rehberg before the grand jury. The lawsuit contended that Rehberg was a victim of retaliatory prosecution, and that his free speech rights had been violated. Paulk sought to have the case dismissed, claiming that grand jury witnesses are entitled to absolute immunity for their testimony. A federal judge rejected that claim, but the Eleventh Circuit Court ruled for Paulk’s immunity. Rehnberg then petitioned the Supreme Court to clear up the lower court conflict on the issue.

The dispute among lower courts is over how to reconcile two Supreme Court rulings: Briscoe v. LaHue in 1983, granting total immunity to a police officer who lied during a criminal trial, and Malley v. Briggs, in 1986, finding that a police officer does not have absolute immunity for initiating a criminal case by wrongly obtaining an arrest warrant, based on an invalid affidavit.

The Solicitor General, stepping into the case in the Supreme Court, said the Eleventh Circuit Court was right: “a government official who testifies as a witness in ongoing judicial proceedings, including before a grand jury, is entitled to absolute immunity from civil damages actions based on his testimony.” The brief elaborated on that theme throughout most of its 32 pages. But, near the end, it suggested that the Court send the case back to lower courts to consider whether Paulk has only a limited form of immunity “for procuring or inducing a malicious prosecution.” It added, however, that Paulk might be liable only if “the alleged means of procurement or inducement were acts other than grand jury testimony.”

Rehberg’s lawyers notified the Court that they would not be willing to share any of their time with the SG, since that office had turned out to be a nearly complete adversary. His lawyers dismissed as an afterthought the suggestion that the case go back for review of an issue. That issue is not before the Court, the response said. Paulk’s lawyers informed the Court that they would consent to giving the government five minutes of their time.

In refusing to allot any time to the SG, the Court, following its usual practice, gave no explanation.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices met for their December 9 conference; Honeycutt v. United States.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.